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HIGHER LAW 



I'HIED BV 



EEASON AID AUTHORITY. 



Discite Justitiam moniti, et non temnere Divos. 



NEW YORK: 

S. W BENEDICT, 16 SPRUCE STREET 

1851. 



71 




THE 



HIGHER LAW 



TRIED BY 



REASOI AID AUTHORITY 



Discite Justitiam moniti, et non temnere Divos. 




NEW YORK: 

S. W. BENEDICT, 16 SPRUCE STREET, 

1851. 






Entered, according to act of Congress, in the year 1851, by 

S. W. BENEDICT, 

in the Clerk's office, of the District Court of the United States, for the Southern Dis- 
trict of New York. . 



PREFACE 



This publication is anonymous. If the principles which it aims to 
establish are true, they need no man's name to give them warrant ; if 
they are not true, then the author will best subserve the cause of truth 
by remaining nameless. 

His only motive in investigating the subject of this essay, has been 
to discover the truth for himself ; and having become satisfied in the 
progress of his inquiries, that the views here advocated were capable of 
being placed on impregnable grounds, and seeing no attempt hitherto 
to do it in a thorough and systematic manner, he has determined to 
place this result of his labors before the public. 

No higher merit is claimed for it than the endeavor to look at the 
subject fairly and fully, and to judge it from every point of \dew. All 
that he has seen written on this side of the question has lacked com- 
prehensiveness, — one writer pursuing only the moral, another the con- 
stitutional, and a third the Scriptural argument. An attempt is here 
made to collect the scattered threads of reasoning and make them con- 
verge to one common centre ; with what success the reader must judge. 

Whatever may be thought of the conclusions herein arrived at, the 
discussion of them at this juncture, cannot fail to be opportune. While 
the author is personally indiiferent to the reception of his work, and 
leaves it to gather dust upon the shelf, or make its mark upon the 
town, as the time may send, or the trade-winds may blow, he has an 
abiding faith in the triumph of the principles it maintains. He here 
casts his morsel of bread upon the waters, assured that it vidll return 
again, though after many days. 



THE HIGHER LAW. 



Among tlie topics wMcIl at present occupy tlie 
public mind, there is one wMcL. stands prominent 
as a question of commanding and absorbing inter- 
est to every citizen. We refer to tlie ground and 
tlie extent of tbe obligation of obedience to law. 

Men are drawn to tMs subject by a triple cord of 
duty, of passion, and of interest ; it is a question 
of politics and of etMcs, of expediency and of 
justice, of conscience and of law ; it covers the 
whole field of human society, and of Divine Gov- 
ernment ; it embraces principles wbidi overrun the 
narrow limits of neigliborhood and of race, and 
take in the broad scope of humanity ; it respects 
alike, temporal obligations and eternal justice, — ■ 
the ordinances of men, and the will of God. It 
involves the duty of millions, and the rights and 
liberties of thousands of our people. 

It is not surprising that a question reaching so 
far as this should move men so powerfully as we 
see it doing. It is no vfonder that yon hear of it 
at every corner, that you read of it in every book 
and newspaper. Congress and Legislature are full 
of it ; their resolutions and counter-resolutions are 



b THE HIGHER LAW. 

shot across the land on the lightning's wing, awak- 
ening everywhere the intensest interest. Elections 
hang trembling in the balance, awaiting the rise 
or fall of the new idea ; Conventions meet to de- 
fend or to denounce the law ; preachers from their 
pulpits — ^leaders of the people, yet always follow- 
ing — ^proclaim the Higher Law, or recommend the 
lower ; editors of the press — ^sure straws to indi- 
cate the blowing of the wind — ^bend to the popular 
current, and fancy that 'tis they that blow the 
breeze ; every lecturer, be his subject what it may — 
theology or geology, Mahometanism or slavery — 
feels himself bound to bring in the all-absorbing 
theme ; it is agitated in clubs and coffee-rooms, in 
the cars and on the steamboats, in the street, the 
store and the market-place ; everywhere where men 
go, goes with them this inevitable idea, of the con- 
flict between the Hights of Conscience and the Ob- 
ligations of Law. 

For this effect, there must be somewhere an ade- 
quate cause. However it may be with individuals, 
it is certain that communities never cry out unless 
they are hurt. It is needless to remark that the 
present prominence of this question has grown out 
of a quite recent act of legislation. But the prin- 
ciple involved is not new ; and it may not be amiss, 
passing for the present all immediate reference to 
the Fugitive Slave Law, to take a calm survey of 
the general principle of the Obligation of Human 
Law. 

Let us first inquire what is the ground whereon 



THE HiailER LAW* 



this obligation is founded ? To find tlie foundation 
of any law, we must go back to the law-making 
power, to the source whence it emanated, namely, — 
government. It is the function of government to 
make laws and to provide for their execution. If, 
then, the authority of a law rests primarily on the 
authority of the government that made it, we are 
next to inquire, whence comes the authority of the 
government ? 

Of all theories of government, that one which 
derives its authority from God, seems now to 
be pretty generally abandoned. The doctrine 
of the Divine riglit of government, whether 
lodged in king or commons, finds little favor in 
any enlightened nation at the present day. But 
since it has lately been re-asserted from the pulpit, 
and by a portion of the religious press, it may be 
well to remark, that this theory must assert one of 
two things: either first, that God divinely com- 
missions all governments equally, or else that he 
has specially invested some one government with 
Divine authority. The last of these suppositions, 
it is obvious, cannot be maintained, for whatever 
may be thought of the government of the ancient 
Hebrews, it is manifest that no tJieocracy anywhere 
exists in modern times. The first supposition will 
be found equally false, since, if God divinely com- 
missions all governments alike, then he is found to 
be the author of oligarchy in one nation, demo- 
cracy in another, and tyranny in a third ; and is 
made moreover to sanction, in case of a successful 



8 THE HIGHEE LAW. 

ctange of govemmeiits, botli tlie revolution which 
overthrows the rulers, and the oppression which is 
overthrown. 

No government, then, can borrow authority for 
its acts from God. J^either does, it inherit its au- 
thority, since nobody pretends, in this- country at 
least, to believe in the doctrine of hereditary right. 
Neither has government any inherent authority, in 
and of itself, since all government must have had a 
beginning, and some power outside the government 
must have started it at the first. The only re- 
maining source of the powers of government is 
the people. And this brings us to the principle 
which will form the nucleus of what we have to 
say, viz. : — ^The only foije"datioit of Law is Pub- 
lic Opinion. All government is but an inter- 
mediary between the public opinion and the law 
which it demands. We may, therefore, push aside 
the government and deal with the primary power 
of which it is but the agent. 

Now, to show that the only actual foundation of 
law is public opinion, it is only necessary to con- 
sider, that no law which public opinion does not 
justify can be executed. To every man who knows 
what democracy means, it; is evident, that in one 
way or another, the people in a democratic gov- 
ernment must rule. Any law, interpretation, or 
decision, be it of the nature of common law or 
statute law. State or federal, legislative or judicial, 
which public opinion condemns, is thereby set 
aside, and virtually made void. Attempts may be 



THE HIGHER LAW. 



made to execute it, and a prevalent idea of tlie 
sacredness and supremacy of tlie law may render 
it for a time superior to public opinion ; but if it 
be opposed to tbe sense of the people, tbe instances 
of its observance will be outnumbered by tlie in- 
stances of its violation ; they wlio keep it will be 
few, and tbey wlio break it will be many ; tlie 
courts will be wise enougli in tlieir generation to 
administer it after tlie popular will ; by one subter- 
fuge or anotlier, or by open disobedience, tke law 
will be circumvented ; it will become superfluous 
because it is generally disregarded, and then re- 
pealed because it is superfluous ; and all this for 
the plain and sufficient reason, as true in the laws 
of nations as in those of nature, that the stream 
can rise no higher than the fountain, that it is the 
people at last which makes and unmakes the laws, 
which "rules the rulers, and judges the judge." 
It is useless to talk of the supremacy of the law, 
when we know that the people only are supreme. 
Any other view is at once seen to be preposterous, 
since it makes a piece of parchment of more value 
than a nation of men. 

Nor can this point be evaded by saying that 
the people, by its authorized agents, having made 
the law, it partakes of the supremacy of the peo- 
ple, and is, in fact, the same thing as the people. 
It is a plain fact that there is a large body of laws 
on the statute book of every people, which are 
practically and notoriously void. They are so for 
many reasons. Take a few examples. 



10 THE HIGHEE LAW. 

There is a law on tlie statute book of. Soutli 
Carolina, unrepealed by tlie authority that made it, 
requiring every male citizen, under penalties, to go 
to church well armed. Now this law was the re- 
sult of a temporary necessity, but is now rendered 
obsolete by the lapse of time. Still, it is statute 
law,^ — supreme law, — and the courts are legally 
bound so to declare it, and so to administer it, and 
yet the first attempt to enforce it would be met 
by an opposition as irresistible as it would be just. 
Here is a law which is rendered void by the 
Higher Law of public opinion, which refuses its 
execution because the occasion for which it was 
made has ceased to exist. 

There is a Law of the Legislature of Pennsyl- 
vania, yet unrepealed, prohibiting all the citizens 
oi the State from paying out notes of foreign 
Banks, of a less denomination than Five Dollars. 
Yet no attempt was ever made by the people 
of Pennsylvania to observe it, — ^beyond perhaps 
the first few months of its taking effect, and it 
is now universally disregarded. Here is a law 
made void by the Higher Law of public opinion, 
grounded on a business necessity which impera- 
tively demands free-trade in money. 

The Revised Statutes of Massachusetts contain 
laws, supposed to be "in full force and virtue," 
prohibiting, under heavy penalties, all betting 
upon elections ; yet if one were to reckon the 
sums staked upon any Presidential canvass, from 
the tens of thousands in State street, to the uni- 



THE HIGHER LAW. 11 

versal " liat " or " boots " througliout tlie country 
towns, lie would very likely conclude tliat public 
opinion regards ^o slight a violation of tlie statute 
against spending money foolishly, as no very hein- 
ous crime. 

Many States liave attempted to enforce laws 
against the traffic in intoxicating drinks. Such 
laws have been passed, and after strong and re- 
peated efforts, with all the machinery of govern- 
ment to back the law, have fallen to the ground 
null and void. However good and desirable these 
laws might be in their effects, — if carried out, — • 
it cannot be gainsaid that they have been defeated 
by a Higher Law, — by a public opinion which 
feels that the mere ph^^sical appetite of drinking 
cannot justly be controlled by civil law. 

Thus we might go on, citing instance after in- 
stance to prove, that there are some laws which 
are ridiculous, and fall to the ground by the 
Higher Law of common sense ; — some laws which 
are obsolete, and are defeated by the Higher Law 
of human progress ; — ^some laws which are incon- 
venient and are overruled by the Higher Law of 
necessity ;— some laws which are unnatural, and 
are null by the Higher Law of instinct and of na- 
ture ; and some laws which are unjust^ and are 
void by the Higher Law of conscience and of 
God. 

But it may be argued, that in saying that many 
laws are not obeyed, we have not said all, and 



12 THE HIGHEE LAW. 

that tlie mere fact tliat they cannot be executed, 
is no evidence that they should not be. 

If they cannot be executed, because defeated 
by public opinion, one would say that there is 

at least no remedy, — since we have already shown 
that the sole foundation of law is public opinion. 

But the. true answer to the question lie^ deeper, 
and brings us to state the ultimate fact in this 
matter, viz. : — ^that as the actual foundation of all 
law is public opinion^ so its sole Sa:notion is its 
Eeasoe- and Justice. And here lies the real 
question between the opponents and the advo- 
cates of the Higher Law doctrine ; the former 
assert the binding obligation of all laws, just or 
unjust,^ — ^the latter deny the obligation of all un- 
just enactments. 

The ground of this denial may be thus stated. 
Justice is the Supreme Law of the universe. It 
is synonymous with the Law of Nature, and 
means the same thing as the Will of God. All 
men are bound, by the very fact of their existence 
in the constitution of nature, to obey its laws in 
preference to all others. It is each man's primary 
duty to do what is right, and to avoid what is 
wrong. There is such a thing as IvTatural Eight ; 
there is a distinction between right and wrong 
anterior to Human Law. To prove this, it is only 
necessary to say, that were there no justice, there 
could be no law ; were there no natural and ne- 
cessary distinction between right and wrong, the 
law which recognizes the distinction would never 



THE HIGHER LAW. 13 

be made. No law can create riglit, or make 
wrong. Its function is merely declaratory of tlie 
right and wrong wliicli previously exist. Tlie law 
is not the foundation of justice ; justice is tlie 
foundation of tlie law. He wlio asserts tlie con- 
trary, turns the universe upside down, puts the 
cause for the eifect, and the effect for the cause. 

If what has been said is true, then Justice is 
higher than the law ; and if Justice is higher than 
the law, then no unjust law has any sanction 
whatever, and obedience to it is wrong. Now it 
is well known that many unjust laws do get en- 
acted ; some by hasty legislation, — some by viola- 
tions of the constitution,' — some by the legislators 
personally misrepresenting the people, — and a 
few, — (though these are among the rarest), — ^by 
a public opinion which is itself wrong. 

Here, then, we have an unjust law enacted, and 
it calls on us for obedience. Now one of two 
things must be done ; either we must yield im- 
plicit obedience to the law, because it is law, 
thus violating the duty we owe to reason and 
justice, to conscience and to God,^ — or else we 
must disobey the unjust law, and take the con- 
sequences. Our action in this dilemma will de- 
pend very much on the circumstances of each case 
as it occurs. ___ 

If the law in question be one of the absurd or 
obsolete kind, then the injustice of it is grounded 
on its unreasonableness, and the chances are that 
it will not be pushed to extremity, and no one 



14 THE HIGHEE LAW. 

will be reduced to tlie alternative of disobedience. 
However men may theorize, it will be found in 
practice, tbat some sentiment of justice is natural 
to man ; and public opinion wiU mucli sooner vio- 
late its own law, tban pnsb to tbe extremity tlie 
unreasonable or supererogatory enactments wMcL. 
are found on the statute book. I know it is often 
said tliat " tke law is tke perfection of reason ;" 
but most lawyers, and some wlio are not, know 
tliat a more absurd falsehood was never uttered. 
If tbe converse of tke maxim were true, and tke 
perfection of reason were always law, tkere migbt 
be some rational bope of always getting justice 
done. The law books are not wanting in cases of 
tMs kind, wbere laws have proved in practice 
wboUy inoperative, because not founded in reason 
or necessity. And tMs fact alone is a sufficient 
confutation of tbe notion of tbe sacred supremacy 
of tbe law. Law, no more tban government, bas 
any Divine rigbt, or any inberent authority. It is 
always amenable to the reason and public opinion 
that made it. A senseless statute is no very sa- 
cred thing, and to say that all laws are sacred and 
supreme, because they are laws, is a kind of logic 
which it is charitable criticism to call absurd. 
Law is at the best, a temporary expedient, — rea- 
son is a perpetual force ; law is artificial, — common 
sense is natural. That our fathers stultified them- 
selves, is no reason why we should, — ^and the 
Egyptian law, requiring men to eat garlic in wor- 
ship of the cats, though both " sacred " and " su- 



THE HIGHEE LAW. 15 

preme," was not very rigidly observed by tlieir 
posterity. 

Again, if the law in question be simply incon- 
venient, or if it deprive one of no natural right, or 
violate no man's conscience, tliough subjecting him 
to pecuniary or other disadvantage, it is generally 
best to obey it, — ^that is, provided public opinion 
insists on its enforcement. Of this class are many 
laws regulating pecuniary matters, and those ac- 
tions which are in themselves indifferent, i.e.^ nei- 
ther right nor wrong. But even in this case there 
may be a stern and overruling necessity which 
renders obedience impracticable, — as in the case 
of a business pressure, where a breach of the laws 
regulating interest may be absolutely necessary to 
save hundreds of men from ruin. 

Again, the law regulating the sacredness of hu- 
man life may be overruled by the higher necessity 
of self-defence. A spontaneous instinct in every 
man tells him that self-preservation is the Higher 
Law, and if he take the life of his antagonist to 
preserve his own, most juries will suspend the law 
of manslaughter in his favor. 

But in the last place, the law in question may 
be so plain a violation of natural right, so direct 
an outrage upon justice, or humanity, or both, as 
to take away all its obligation from the start, and 
in fact to oblige us to its disobedience. 

Let us look at a few instances. — ^Nobody will 
pretend that a law commanding murder would be 
binding for a moment, — and the reason is plain. 



16 THE HIGHER LAW. 

that such, a law is a subversion of all the plainest 
dictates of nature and morality. 

Nearly all legal writers are agreed that all im- 
moral laws are ipso facto void. Any law against 
chastity, of whatever nature, so far from binding a 
man to obey it, makes it his duty to break it at 
every hazard, — since man's virtue is his very self, 
and each one has a natural right to protect the 
morality of him and his against whatever power. 

Any law restraining the freedom of speech or 
of the press is void. The human mind knows its 
rights, and sooner or later it will have them, — ^if 
not by law, then in spite of law. It is needless to 
quote arguments in proof of so plain a thing. 
Every man feels his right to say what he thinks, 
and the government which cannot stand against 
the most perfect liberty of speech, must be either 
very wicked or very weak. — So also, the laws pro- 
hibiting profane swearing, however moral in their 
tendency, are yet contrary to natural right, as the 
universal disregard of them sufficiently shows. 

Any law restricting men from one kind of re- 
ligious worship, or compelling them to another, is 
void. God allows no human statute to come be- 
tween him and his creatures. Under whatever 
government a man may live, all experience and 
reason prove that the rights of conscience are re- 
served, and no law can for any length of time put 
fetters on the free will of man, or make him be- 
lieve what in his soul he feels to be false. 

So any law suspending the sanctions of human 



THE HIGHER LAW. 17 

brotherhood is void. 'No enactment can jorevent 
me from helping or sheltering, feeding or clothing 
a fellow-man who has not forfeited his claims by 
committing a crime. Any attempt to enforce 
laws against kindness and hospitality is as vain as 
it is wicked. Talk of prohibiting hnmanity by 
statute, of putting fines on charity, and penalties 
on pity ! Such laws may be made, but they will 
never be obeyed, until common humanity is ob- 
literated from the heart, and human natm-e itself 
abolished. 

So, also, any law compelling me to aid in en- 
slaving or re-enslaving a man, is void. ISTo law can 
possibly bind me to do that to another, while in- 
nocent of crime, which would be unjust and cruel, 
if done to myself, I cannot be bound to aid in 
robbing another of a natural and inalienable right. 
I cannot be made to commit injustice and cruelty 
by statute. There is no just distinction between 
the obligation of such a law, and that of a law 
commanding murder, which all will agree is void. 
My neighbor's right to liberty is as inalienable as 
his right to Hfe. It is just as sacred, just as invio- 
lable, just as precious ; it is equally a natm'al right 
with the other, and until he forfeit it, by interfer- 
ing with another's liberty, nothing can take it from 
him. To take his life is not a higher crime than to 
take his liberty, since he may rather choose to die 
than be made a slave. Patrick Heme's sentiment, 
" Give me liberty, or give me death," is at once seen 

2 



18 THE HIGHEE LAW, 

to be fatal to tlie obligation of a law wHcli compels 
me to aid in taking the riglit to liberty away. 

It is no answer to tMs to say tliat our fathers con- 
tracted for us that we would do this, and that the 
contract is binding. Suppose our fathers had con- 
tracted for us that we would stone every Ca- 
tholic who came amongst us, or return in irons 
every fugitive escaped from the Algerines, that 
contract would be binding, would it ? Some one 
may answer that there is no analogy between 
the cases, since one-half the nation made a bar- 
gain with the other half, and founded the Consti- 
tution upon the bargain, and exchanged considera- 
tions, and we have received our quid pro quo. But 
we have not received it, in point of fact ; it ha& 
been denied us over and over again ; Charleston and 
Mobile put our citizens in dungeons in open de- 
fiance of the Constitution and the " bargain ;" and 
if tliey do not keep the compact where it is just, 
why should we where it is unjust and inhuman 
too ? But if you say that one breach of it cannot 
justify another, and that the Constitution does 
positively promise that these fugitives shall be re- 
enslaved, and the Union is founded upon it, and 
will go to pieces if it isn't done, then we answer, Be 
it so, — -grant that the Constitution promises to re- 
enslave them, it does not promise that you and I 
shall make scoundrels of ourselves to do it. We 
will give no more than is nominated in the bond. 
K the southern Shylocks must have their pound 
of flesh, and no considerations can move them to 



THE HIGHER LAW. 19 

be merciful, tlien they must be content with " only 
justice and the bond." The bond does not require 
the freemen of the north to turn slave catchers ; 
they may preserve their manhood and still keep 
the bond ; that crowning infamy was reserved for 
the law of Congress of the year of grace 1850. 
The law of Congress makes it the duty of " all 
good citizens" to aid the posse^ if called upon by 
the Marshal, in binding and delivering back the 
fugitive ; but the Constitution gives Congress no 
power to compel the citizens to do anything of 
the kind. Let the law of Congress execute itself 
by the proper officers, and not call on the people 
to do its dirty work. Because the Constitution 
says that fugitives shall be re-delivered, it does 
not follow that you and I must re-deliver them. 
Because the law says this man must be hung, it 
does not follow that you or I must be made to 
hang him, let him deserve it never so richly. The 
law of Congress may perhaps find some northern 
men willing to be " disinterested villains ;" but 
" all good citizens" will keep on their way, and 
leave the Marshal and the^6>^6'^, and the Shylocks, 
to their own peculiar calling. 

Tis curious to consider how plainly this law of 
Congress contradicts another, passed when the na- 
tion had fewer men, but larger souls than now. 
It is not difficult, on the Statute Book of the 
United States itself, to find a Higher Law than 
this passed last year. By the law of Congress, of 
March 2j 1807, it is piracy and murder — crimes 



20 THE HIGHEE LAW, 

p-iinislia"ble by deatli, — to enslave a man on tise 
coast of Africa ; yet here is another law of Con- 
gress compelling yon and me to re-eiiAsiYe every 
man we find on any coast of America ! Strange 
anomaly that right and wrong shonld be reversed 
by longitudinal degrees, that crime should depend 
on climate, that what is illegal piracy and murder 
in Africa, should be legal duty and obligation in 
the United States ! Tell us not that to send a 
man back to slavery is by no means so bad as to 
maJc^e him a slave at first ; — by every standard of 
reason and right it is infinitely worse. In the one 
case, there may seem some small excuse, — and, no 
matter how flimsy, it is better than none at all ; — 
that he is willing, or that it will better his con- 
dition ; in the other — there is no single shadow of 
a plea for sending him to a condition he has 
fled from^ — sl bondage he has escaped. In the one 
case — ^it may not be a man, but an idiot, or a 
fool — ^in the other, it is crushing down the man- 
hood of as complete a man as ever God fashioned 
in his image. In the one case, it may be he 
knows not the value of freedom, and cares not 
much for liberty ; in the other, he has conquered 
his freedom and holds on to it,^ — ^he has achieved his 
liberty and asserted his right to be a man. Yes, 
it is a far deeper crime to re-enslave a man than 
to enslave him at the first ; he who does the lat- 
ter treads upon a law of nature^ — ^he who dares do 
the former, tramples upon human nature itself 
From all that has now been said, the conclusion 



THE HIGHER LAW. 21 

is plain, tliat notMiig can sanction or legalize in- 
justice ; in otlier words, tliat no law subversive of 
natural right lias any binding obligation. All 
the laws we have just enumerated under this head 
seem to come clearly within the category of unr 
just laws; and to every man so believing, diso: 
bedience to theip is a duty. _ 

To these views, we are fully aware that numer. 
ous, and at first sight formidable objections may 
be urged. We propose to examine, in order, all 
of these which suggest themselves. 

1. It is objected, that, as constituent mem- 
bers of the State, we are bound to obey all its 
laws, when called upon, and if we cannot consci- 
entiously obey its unjust laws, we must take care 
not to be called upon (z'.^., keep out of the way of 
the law), or, if we cannot do this, we must cjuit 
the country. We have heard a number of per- 
sons, in debating what should be done in case of 
being called upon to assist in executing the Fugi- 
tive Slave Law, say that they should " run away 
as fast as possible." This seems to us to be a very 
short-sighted kind of sense, if not indeed quite 
ostrich-like, — for the theory in our country is that 
the law is brought to every man's door, — and the 
presumption is, that in case of a running-away to 
evade the law, the law can run at least as fast and 
as far as we can. It is a poor subterfuge to think 
that we can escape the responsibility of upholding 
the law by '' running away " when called upon to 



22 THE HIOHER LAW. 

execute it. TMs course only ends in mating fugi- 
tives of freemen as well as slaves, — ^the one fugi- 
tives from labor, the other fugitives from law. 
Let a man first make sure whether it is his duty 
to obey the law ; if he decides yes, — ^then let him 
do manfully and like a "good citizen" what he 
deems to be his duty, even though it be a " disa- 
greeable duty." Is it not his business to " conquer 
his prejudices," and put away all " squeamishness " 
and " sentimentalism " ? One would think that 
these " law-abiding " citizens who pride themselves 
so much on their faith in the statute book, could 
" abide " by the law long enough to see it execut- 
ed. Yet these very men, when it comes to the 
pinch, are the first to flinch from the " duty," — ^to 
" run away," or pass by on the other side. True 
it is that men have more manhood in them than 
their theories of government would lead you to 
think ; true it is that few can be found, willing to 
turn slave-catchers at the bidding of the law. 
But what manikins they are, after all ! Why, 
they religiously believe (or pretend to), that it is 
their bounden duty to actively obey this law ; it 
is their " Higher Law," — the only law they know ; 
they prove to you that by the most sacred obliga- 
tions they owe it duty and obedience,^ — >and yet, 
when it asks them to act out their words, straight- 
way " conscience make cowards of them all," and 
not one of them has the pluck to do his " duty." 
Fie upon such weakness ! 'Tis time we had 
learned that it never can be our duty to obey un- 



THE HIGHER LAW. 23 

rigliteous laws, to crusli our consciences, or per- 
form impossibilities. — Man's duty lie can do^ — ■ 
these men do it, — keep their conscience and break 
tke laws, — their pretended duty, to keep the law 
and break their conscience, — no man makes out to 
compass that. Strange that men should so invert 
the true relations of duty. Man's duty it is al- 
ways in his power to do, — -else it were not duty^ — 
and the man who both cannot and will not do his 
duty, when he knows it, had better have done 
with pretending to be a man. 

The second alternative proposed to us in the 
case of unjust laws is to " quit the country." So 
long as you stay in the country, it is said, you re- 
ceive the protection of the government, and must 
obey all its laws ; the moment you refuse to obey, 
you forfeit this protection, and should take your- 
self away where you can conscientiously keep the 
laws, and so merit the rights of citizenship. 

To say nothing of the very doubtful policy of 
leaving the " freest and most enlightened country 
on the globe," in the hope of finding a better, or 
of the risk we might run of leaping "from the 
frying-pan into the fire," it may be answered that 
this course is the worst that could be followed, 
both for the country and the citizen. If my coun- 
try is wrong, it is my duty to try and right her. 
I owe her this devotion, and she owes me her 
protection, — not for obeying her laws, right or 
wrong, but for striving as a faithful citizen to se- 
cure her prosperity by securing justice in her 



24 THE HIGHEE LAW. 

affairs. Grant that tlie sMp of state lias sprung s 
leak or two, and is somewhat infested with rats ; 
the duty of the true and loyal seaman, is not to 
quit the ship, or hy ignoring her imperfections, to 
jeopardize her safety; it is our duty to "stand 
by " and try to stop the leaks, and drive out the 
rats,^ — not keep the knot-holes to swear by, and 
the rats to worship. 

If a majority of my countrymen pass a law to 
kill aU the deformed people in the land, and make 
it my duty to aid in doing it, — -must I run away 
to teach Christianity to the Hottentots or Pata- 
gonians, and leave my " Christian " countrymen to 
persevere in crimes before whose enormity the 
barbarities of heathenism dwindle into insignifi- 
cance ? 

2. It is very commonly alleged that the only 
proper remedy against an unjust law is repeal^ and 
that the ill results of disobedience are so serious 
as to render it best to obey even a bad law, so 
long as it remains law, while we labor by all the 
means in our power to promote its repeal. 

However plausible this may seem at first, a lit- 
tle close inspection will suffice to show that it is a 
sample of logic inverted, and common sense upside 
down. To talk of repealing a law as soon as it is 
passed, overlooks the fact, that a majority of the 
law-making power are in favor of it, and are very 
unlikely to undo their own work, until compelled 
by the irresistible voice of the people. The fact 
that the law is passed is presumptive evidence 



THE HIGHEE LAW, 25 

that there is a majority in its favor. Eepeal 
is a work of time, — it requires agitation, opposi- 
tion, election, party-macMnery, before it can be 
effected. Meanwhile, if you are to keep on obey- 
ing the unjust law, while working against it all the 
while, is it not plain to see that your example con- 
tradicts your precept, your life gives your principles 
the lie ? What is the use of preaching up justice, 
of talking against an unjust law, when, by your 
every act of obedience to the imjust law, justice 
receives a fatal stab ? Truly, it is a beautiful way 
of getting an atrocious law repealed, to keep on 
obeying it all the while 1 A likely plan to rid us 
of injustice, to keep doing it ourselves ! An ex- 
cellent and pious method of serving God, to keep 
on good terms with the devil ! Because an unjust 
law comes along, we must first obey it because it 
is law, and then repeal it because it is unjust. Be- 
cause iniquity is established by statute, we must 
keep the statute till we can destroy it, uphold it 
till it can be overthrown! Such beetle-logic as 
this, may safely be left to confute itself. Because 
the majority have resolved to sin, we must go with 
them and keep on sinning to the end of the chap- 
ter, and then turn right about and sin no more, 
because we have at length succeeded in convincing 
the majority that we and they are all miserable 
sinners, — especially we, who knew better, and so 
add the guilt of hypocrisy to the guilt of the other 
sin. How vastly reasonable it is thus to keep 
weaving a web with one hand and pulling it to 



26 THE HIGHER LAW. 

pieces witli tlie other, to build a house in tlie 
morning, and tear it down at night, to undertake 
to do wrong rightly, conscientiously obey the law 
our conscience knows to be wicked, be unjust ad- 
vocates of justice, be true and false, " loyal and 
neutral, in a moment ! " 

But a still more conclusive answer to the objec- 
tion may be drawn from history. Experience 
proves that passive obedience never yet repealed 
an unjust law. To talk of the sacredness of un- 
righteous laws, and the binding obligation of them, 
till we can get them repealed, is to deny all ex- 
perience and to fly in the teeth of facts. The 
natural method, that which history points out, 
and reason approves, and justice sanctions, is just 
precisely the opposit ) of this. First, the unjust 
law has been tried, — ^then its wrongfulness has be- 
come apparent to some among the people, — ^these 
men thought and reflected, and tried the law by 
reason and conscience, — ^next they settled their 
minds against it and resolved not to obey it, — 
next they disobeyed it, — ^next this excited and 
roused public opinion,- — all that could be brought 
to uphold the unjust law was brought — authority, 
proscription — sacred obligation ; — ^it was discussed 
and agitated, and weighed and found wanting,-— 
the friends of justice soon began to outnumber its 
foes, — the revolution (something which never goes 
backward) could not be stopped, — the law was 
disobeyed again, and again, and still again, — every 
new man in whom justice found a home, added to 



THE HiailEE LAW. 2T 

tlie number who would not keep tlie law, — soon 
it came to pass tliat tlie law could not be exe- 
cuted ; — ^tlie law wMcli cannot be executed, must 
one day be repealed ; — and finally, and after all this 
preliminary contest, the law was formally and 
definitively repealed. This is the actual method 
in which the world gets rid of unrighteous laws ; 
first they are disobeyed and then repealed ; first 
the people have thrown them aside, and then the 
legislature have abrogated them because they were 
thrown aside ; fii'st the law has perished because 
of justice, and then been buried by statute because 
it was dead. 

All history can scarcely show an instance of the 
repeal of a law before it was first disobeyed. The 
opposite doctrine, of passive obedience first and 
repeal afterward, would have kept alive every 
wrong, and perpetuated every tyranny since the 
world began. It would have sanctioned the op- 
pressions of James and the tyranny of bloody 
Mary. It would have deprived Hampden of all 
claim to honor, and torn the crown of glory from 
the brow of Sidney. It would have put a stopper 
on the English revolution, and kept our fore- 
fathers and us their children to this day loyal 
subjects of the British crown. 

3. Men say that however good such reasoning 
as the above may be against the unjust laws of an 
absolute government, it cannot hold in a democra- 
cy^ since here every man has a voice in the mak- 
ing of the laws, and has virtually bound himself to 



28 THE HIGHEE LAW. 

obey tliem wlien made. — ^This reasoning is spe- 
cious, bnt not solid. 

If, according to tlie theory, every man has a 
voice in making the law, and expresses that voice 
against it, instead of for it, (by voting for a legis- 
lator whom he believes to be opposed to such 
laws), then he does not bind himself to obey the 
law he has voted against. — ^The only ground on 
which it is possible to place the superior obliga- 
tion of unjust laws, in a democracy, is, that in a 
republican government, the will of the majority is 
supreme, and every citizen is bound absolutely to 
obey that will when enacted into law. 

But this argument oversets itself by proving too 
much, — for, if the will of the majority be the su- 
preme law, irrespective of justice, then there is no 
wrong or crime which we may not be obliged to 
do, if the majority so ordain. If 'th^ majority of 
voices be the only rule of our conduct, we are 
given over to as pure a tyranny as any absolute 
monarchy on the globe. Whether we are bound 
to do wrong at the popular bidding, or by the fiat 
of the king, makes but little difference. King Peo- 
ple or King James are equal before the bar of 
conscience. Wrong does not change its nature by 
becoming popular, any more than injustice is made 
just by becoming law. The eternal principles of 
justice depend not on majorities, — the strong in- 
stincts of humanity cannot be voted down by num- 
bers. Majority of voices avails nothing in morals, 
—nor can we be discharged of our duty to con- 



THE HIGHER LAW. 29 

science by resolving to keep the law of tlie domi- 
nant party, right or wrong. Grant that all civil 
power is given to Congress, so that whatever Con- 
gress wills, it may do ; yet there are certain things 
which Congress cannot do. All the Congresses of 
all the world cannot make it your duty or mine to 
do a murder, or deny our nature, or trip up the 
heels of a flying fugitive in pursuit of freedom. 
It is a little strange to hear tyrannical and inhu- 
man laws defended on the ground of democracy. 
Strange that republicans must be bound to do 
wrong by more stringent obligations than the sub- 
jects of kings. Is there no tyranny then in repub- 
lics ? No oppression but that of royal power ? 
No injustice but king-craft ? Nay, if men must 
needs justify passive obedience to unrighteous laws, 
let them not do it in the name of democracy. 
Steal not that livery of heaven to serve the devil 
of slavery in. 

This doctrine of the inevitable obligation of all 
unjust laws in a republic, may be most effectually 
overthrown by a practical example. Let us divest 
ourselves of all prejudice in favor of our peculiar 
views, and look impartially at a case supposed, — • 
and a case as likely to occur as was the passage of 
the Fugitive Law a year ago. 

Suppose, then, that in a republic of Hottentots 
or of Hindoos, a law is enacted by the legislature, 
duly elected by the people in democratic form, 
providing that every white man being, or coming 
within the bounds of the republic, shall be caught 



30 THE HIGHEE LAW. 

and reduced to slavery ; and making it tlie duty 
of " all good citizens" to aid in doing it ; and pro- 
hibiting, under heavy penalties, all citizens from 
harboring, helping or concealing, a white man, or 
aiding him to escape out of the jurisdiction of the 
law. Suppose, too, that this law is in accordance 
with the Constitution of the Republic, which, from 
time immemorial, has " recognized" the inferiority 
of white men, and " sanctioned" the enslaving of 
them whenever the law allowed. Suppose, now, 
that there are two thousand white men within the 
bounds of the republic, who, in the sleep of the 
Constitution and the law, have been living as free- 
men of the soil, — and suppose they are now hunted 
out, and one after another brought into subjection 
to the new law, and made slaves for life. Suppose, 
too, that there are a few men, among the Hindoos, 
having a little more light, and a little more con- 
science than the law-makers, who are shocked at 
this inhuman business, and wish to protect and 
shelter, or at least to send out of the State these 
unoffending but devoted men ; or, at the very least^ 
do not wish themselves to be the bloodhounds who 
shall dog them into slavery. The question arises, 
are they bound to obey this unrighteous and in- 
human law, because it is the law of the majority ? 
I think human nature, in white or black, will an- 
swer, no ! It is better to suffer wrong than do 
wrong. Let the law take its course and execute 
itself upon those who disobey it. Their consciences, 
at least, are clear, and no human law, democratic 



THE HIGHER LAW. 31 

or otherwise, can oblige either Hottentot or Cliris- 
tian to violate his conscience. 

The true principle everywhere is this : — Kepub- 
lics as well as all other governments, are bounded 
by the law of nature and justice in their enact- 
ments; and to say that every republican law is 
ipso facto supremely obligatory, is to open the door 
to all manner of wrong and injustice. 

4. It is objected that, even granting unjust laws 
to exist, there is no absolute standard by which to 
know them, and no individual has a right to set 
up his judgment in so grave a matter as the obli- 
gation of a law. But this is a complete begging 
of the question, for we are talking all the while of 
laws known and acknowledged of all men, (at 
least all the men with whom we argue), to be 
unjust. 

We proceed to answer the latter portion of the 
objection. We have nowhere claimed the right of 
disobedience to simply inconvenient laws, or to laws 
of doubtful expediency, where the common judg- 
ment may differ widely. The only cases we have ad- 
duced, as not only justifying but demanding dis- 
obedience, are extreme and urgent cases, where 
the highest moral prmciples are involved, and 
where the verdict of conscience is quite clear. In 
such cases, it is obvious that no arbiter but con- 
science can have jurisdiction of the case. In every 
question of the obligation of such a law, duty is in- 
volved, and where duty is involved, there con- 
science alone must determine what is duty ; and it 



32 THE HIGHEE LAW. 

is manifest tliat no conscience but individual con- 
science can possibly determine it. No man, or body 
of men, can decide my duty for me,- — no Congress 
can be a conscience to any but itself If it is said 
tbat we" cannot set up conscience for a standard, 
since consciences differ, we reply, neither, by tbe 
same token, can you set up Congress for a standard, 
because Congresses differ. It is a weak argument 
wbick refutes itself, by proving just twice too 
mucb. 

But it will be foimd in practice, tbat in regard 
to really unjust laws, consciences do not differ so 
muck after all. In minor matters, tkey may widely 
differ, but in tke case we are treating, of a fla- 
grantly unjust or inkuman law, tkey beat in pretty 
fair unison, tkey tell very muck tke same story. 
Wkatever tkeory of kuman nature we may kold, 
we must admit tke existence of tke moral senti- 
ment in all men. Even tke most strenuous be- 
lievers in total depravity recognize a conscience in 
tke most abandoned of mankind, and appeal to it 
witk tke motives and sanctions of religion. Now, 
tkis conscience is no suck fluctuating and evanes- 
cent tking as many would kave us believe. It 
may be warped by interest, or blinded by passion, 
or seared by custom ; but it is still tkere, and in 
nearly every instance wkere humanity is involved, 
and conscience becomes tke arbiter of duty, it de- 
cides peremptorily for tke rigkt. Tkis is no mere 
assertion, — it is borne out by all experience, and is 
but a natural corollary from tke fact tkat all men 



THE HIGHER LAW. 33 

have hearts and consciences and human feelings. 
It is no dogma of the schools, but a fact founded 
on human nature. Ask the traveler from South 
Wales, or the jailer at Sing-Sing, and they will tell 
you that humanity is not the monopoly of the 
few, but the possession of all, even of the savage 
and the criminal. 

Now, in cases like those supposed — of a law 
contrary to humanity, or subversive of the law of 
nature — the conscience of the community, is rarely 
for any length of time seriously wrong. In a 
wide intercourse with men of all modes of think- 
ing at the north, we have yet to find one willing 
to say he would aid in executing the Fugitive 
Slave Law. We appeal to every reader if his ex- 
perience is not to the same effect. Now, it is only 
to generalize the feeling of all the individuals who 
make up the community, (with a very few excep- 
tions, — ^probably about as many as would consent 
to steal a sheep,) and no one can claim that we 
proceed on too narrow an induction in saying that 
the public conscience — which is but the aggregate 
of individual consciences — is against the execution 
of this unjust law. 

The argument that, in matters of law, we have 
nothing to do with conscience, is too atheistic 
to require an extended refutation. If we are to 
surrender our morality when we come to politics, 
we had better surrender our souls before we come 
to manhood. If we are to deify the law, we had 
better first renounce our allegiance to God. It is 

3 



34 THE HIGHEE LAW. 

high time tliat tlie notion tliat political matters 
are mere questions of expediency, was exploded 
out of tlie heads of all decent citizens, to say 
nothing of true Christians. Politics are national 
morals^ and the nation which does wrong by sta- 
tute is amenable to the same standard as the in- 
dividual who does wrong by will. We cannot 
put off our moral responsibility by shouldering it 
upon the majority ; we cannot get rid of our con- 
sciences, if we would. To say that " conscience has 
nothing to do in politics," is as monstrous a false- 
hood as the old maxim that " reason in religion is 
of unlawful use." The one is the unfailing refuge 
of bigotry and superstition ; the other is the per- 
petual argument of demagogues and tyrants. It 
was a fine sense of natural justice which extorted 
from Napoleon the confession, — " My dominion 
ends where that of conscience begins." 

5. We are told that we have no right to call in 
question a law which is made in fulfillment of the 
Constitution, and that to assert that such a law is un- 
just, and therefore not binding, is to overthrow the 
Constitution itself. 

Let us suppose, for argument's sake, (what is not 
true in reference to the Fugitive Law), that a cer- 
tain law is constitutional ; it does not follow that it 
is therefore just or binding. Constitutions do not 
create justice, but are founded, or claim to be 
founded, upon it. If it is said that the Constitu- 
tion has been from time immemorial the supreme 
law of the land, we answer that justice was before 



THE HIGHER LAW. 35 

the Constitution, and its claims are not only prior, 
but more sacred. Constitutions are made by men, 
but conscience is a creature of God. A constitu- 
tion is subject to time and change, but justice is 
unchangeable and eternal. Besides, supposing the 
Constitution to sanction or ordain injustice, — the 
Constitution was but a compact made by our fa- 
thers, and however binding upon them, they could 
not guarantee that their descendants, to the re- 
motest generation, would consent to perpetuate the 
injustice. It is a principle in law that all immoral 
contracts are ipso facto void. Is our fathers' com- 
pact to do wrong more binding than our conscience 
to do right ? 

But again, even supposing it true in theory that 
the Constitution is the supreme law, yet in practice 
we find it overruled by the veriest trifi.e at the 
will of the people or the Congress. The nation 
wanted Louisiana, and President Jefferson openly 
and avowedly violated the Constitution to pur- 
chase it ; the nation, or a portion of it, wanted 
Texas, and Texas was annexed by "joint resolu- 
tion," in plain defiance of the Constitution. The 
acutest constructionists of the Constitution can 
find in it no power for creating banks, or making 
internal improvements, — ^yet Congress has re- 
peatedly ordained the one, and established the other. 
Talk of the sacred supremacy of the Constitution, 
and the danger of " sapping the foundations of 
the Union," when the Constitution has been vio- 
lated over and over again, and the country has 



36 THE HIGHER LAW. 

coolly acquiesced. Hardly an article in the Con- 
stitution but lias been either evaded or openly 
violated a liost of times. The South violates it as 
often as she pleases, and yet the Union stands. 
She jails our citizens unconstitutionally and un- 
justly too, and yet the world rolls on, and nobody 
thinks the Union or the Constitution in any danger. 
But let a few fugitives be helped to freedom by the 
]N"orth, and straightway solemn warnings and dole- 
ful cries are ringing all abroad of " union," and 
" safety, " and " anarchy, " and " treason, " and 
" our sacred Constitution," and " our glorious 
Union." It is an old story, and is becoming some- 
what stale. It is enough to say that the cry has 
always been heard until the South got what she 
demanded, and then it has been hushed. The 
reason it is now prolonged is, that her demand 
takes " too much blood" away with the pound of 
flesh. The reason is, that the North is found to be 
not quite soulless after all. No doubt the cry will 
be continued, but let every man remember the 
Higher Law, and never fear that the South will 
dissolve the Union because a little justice occa- 
sionally gets done at the North. 

This notion of the binding infallibility of Con- 
stitutions, irrespective of all justice, is nearly as 
baseless as that of the binding obligation of all 
laws. General Jackson stated the true doctrine, 
when he said that every man, when he takes an 
oath to support the Constitution, means to support 
his understanding of it. Every Constitution is 



THE HiaHER LAW. 37 

imperfect, and it is expecting quite too mucli of 
human dullness to claim tliat men shall go on for- 
ever copying tlieir fathers' errors. 

If it is said that this view virtually destroys the 
Constitution, and leaves us without chart or com- 
pass, we reply that the advocates of the supreme 
obligation of Constitutions, irrespective of their 
justice, must embrace one or the other horn of this 
dilemma (and either of them is equally fatal to their 
doctrine), viz. : — Either a people must be governed 
by their own present sense of truth and justice, or 
they must not. The last of these suppositions, it 
is obvious, cannot be maintained, except upon the 
unequivocal principles of tyranny. The first leads 
us at once to the ultimate fact which we have all 
along asserted, viz., — ^The people is greater than 
the Constitution. If you say, then let the Consti- 
tution be constitutionally amended by the peo- 
ple, the same answer must be given as in the case 
of repealing unjust laws, already noticed ; amend- 
ment is a work of time, and must necessarily and 
unavoidably begin with disobedience. 

When will men learn that infallibility is forever 
impossible to man ; that there is, and can be, no 
stereotyped rule of action prescribed beforehand 
for all cases ; that each day brings with it quite 
new and original relations, and must be judged on 
its own merits, or it will be misjudged. 

If it is asked : — -Would you then destroy all 
constitutions and all laws, and leave men only to 
conscience and common sense for their rules of 



38 THE HIGHER LAW. 

action ? We answer, No ; we would only set men 
to thinking in order to improve tlieir institutions, 
to pnrify tlieir laws. We would show tlie neces- 
sary limitations of the law; we would see what it 
cannot do, as well as what it can. We would 
prove that the law is made for the sake of justice, 
not justice for the sake of the law. We would lead 
men to look into the foundations of their laws, 
that so they may build them better and more se- 
cure. Before any laws were, men were; no rule 
of action can antedate reason or common sense, 
or make that which was wrong before, right now. 
That many cases do occur for which there is no 
law, is too plain to need an argument. The whole 
history of jurisprudence is but a record of the vain 
and futile effort of the law, to keep up with the 
progress of the fact. We would only show that 
justice, and reason, and common sense, are the 
primal sources of which laws are but the issues ; 
and when the law fails, as it must often inevitably 
do, we would point men to that universal law- 
giver whose fiats only are supreme. JSTo ; it is not 
to annihilate the lower law that we would proclaim 
the Higher ; it is but to define the bounds where 
the lower ends, and the Higher begins. 

No doubt it will be pleaded in mitigation of 
the judgment against unjust laws, that perfection 
is, of course, impossible in human things, and that 
the most that can be expected is an approximation 
to justice ; and the answer is as plain as it is con- 



THE HIGHER LAW. 39 

elusive, that so, also, tlie most that can be expected 
is an approximation to obedience. 

6. We come now to the grand Coryphaeus of 
objections to the Higher Law, viz. : That it tends 
directly to subvert all laws, and overturn all gov- 
ernment, and must sooner or later end in anarchy. 
If this were true, we should be among the last 
to advocate a principle which leads to such de- 
plorable results. — But it is not true. 

If we have proved anything at all in the course 
of our argument, it is that the only sanction which 
a law can have, is its justice. Now, if the case 
stands thus with the law, that its only claim to be 
obeyed is that it is just, then disobedience to uri' 
just laws, so far from subverting law, tends direct- 
ly to establish it, by honoring in the highest de- 
gree the only true source of its claims, — viz., 
justice. In fact, the only real upholder of the 
law, is he who strenuously opposes an unjust law, 
— since, as all men hold, justice lies at the founda- 
tion, and if it be not there, the superstructure must 
sooner or later totter and fall. He who blindly 
and passively obeys all laws, right or wrong, — 
just or unjust, — is not the friend of law, — ^but of 
arbitrary rule and tyranny. It is a sheer absurd- 
ity to say that because one unjust law is set at 
naught, all the just ones are overthrown. So far 
from this, it can be proved that every act of obe- 
dience to unjust laws tends to weaken the founda- 
tions of all law, by perpetuating those which cast 
a stain upon the statute book, and inducing men 



40 THE HIGHEE LAW. 

to think lightly of a power wMcL. ordains wrong. 
For it is not possible to serve justice and injustice 
together ; it is not in nature to respect the wrong, 
and yet reverence the right. 

If it is said that should I disobey an unjust law, 
another man will disobey a just one, I reply, so 
much the worse for him. If he cannot see the dif- 
ference between right and wrong, it is no reason 
why I should refuse to see it, or to act upon it 
when seen. Men talk much and foolishly of the 
evil effects of example, as if a good example were 
accountable for every bad thing done in its name. 
Shall I be afraid to do right to-day, lest my neigh- 
bor do wrong to-morrow ? Must I stand forever 
balancing between right and wrong, fearful of 
doing right lest a greater wrong should follow ? 
Must I be the slave of circumstance and expedi- 
ency, and only do just so much justice, as, on a cool 
calculation of chances, will, in my opinion, lead to 
no ill consequences ? Away with such tempor- 
izing and such paltering ! Where truth and just- 
ice and duty stand on one side, and example and 
precedent and expediency on the other, we have 
simply nothing to do with consequences. If I am 
too timid to walk uprightly lest my weaker neigh- 
bor stumble and fall, I had better at once re- 
nounce the responsibility of living, and quit a world 
in which it is so dangerous to do right. 

This plea of the abuse by bad men of the lib- 
erty of good ones, is fit only to be used by Jesuits 
and knaves. He who will not do good lest evil 



THE HIGHEE LAW. 41 

come, is the very man to do evil tliat good may 
come. 

Again, let the theory of the ill results of diso- 
bedience he what it may, all experience proves 
that in practice it is no very dangerous thing, after 
all. The man who will most strenuously disobey 
every unjust law, because he has too much con- 
science to do wrong, — ^is the very man of all others 
who will most religiously obey every just one, — 
and for the very same reason. Who so scrupu- 
lous in his observance of Custom House and civil 
laws, as the Quaker, who will not, for penalties or 
prisons, give up his conscience to obey the mili- 
tary laws ? And everywhere it will be found 
that the opponents of injustice are invariably the 
best and most valuable citizens the State can show. 
It would be strange if it were not so ; strange in- 
deed, if men who are so anxious to do right at 
every hazard, should wrong or injure the State at 
last. Time brings all things out correct, — and no 
good law ever suffered yet because a just man re- 
fused to keep a bad one. 

One would think that the same conclusion could 
be reached without the help of experience to 
prove it. For what is the whole theory and ob- 
ject of government, from foundation to cap-stone, 
but an endeavor to realize justice ? Our trial by 
jury is only twelve men in pursuit of justice. Just- 
ice between man and man is the very thing 
aimed at, and if the law contradicts justice,^ — -as it 
is acknowledged it often does, why, what harm 



42 THE HiaHEE LAW. 

can follow from justice stepping in and taking tlie 
place of tlie law ? It will do tMs spontaneously, 
if only men think rightly, — and, as we kave al- 
ready skown, in questions of humanity, in those 
extreme necessities where only there is call for 
conscience to interpose, — ^they generally do think 
rightly. 

At all events, the principle holds good, that 
nothing but justice at last satisfies everybody, 
and if justice be done now without the law, the 
law will by and by come in to sanction it. Do 
we then make void the law. through justice? 
Nay, we establish the law. 

Such is a brief outline of the arguments that 
may be drawn from Eeason in support of the 
Higher Law. — To such as are accustomed to settle 
most questions by Autliority^ they may seem to be 
inadequate. Fortunately, however, we are not 
left without authority of the highest kind to for- 
tify our reasons. We quote at random a few of 
the expressions we have found upon the pages of 
those whom the respect and reverence of modern 
times have enshrined among the high priests of 
the temple of Justice. 

Says Blackstone, On the Nature of Laws in General: 
" The Law of Nature, being coeval with mankind, and dictated 
by God himself, is of course superior in obligation to any other. 
It is binding over all the globe, in all countries, and at all times ; 
no human laws are of any validity, if contrary to this ; and such 
of them as are valid, derive all their force, and all their author- 
ity, mediately or immediately, from this original." 



THE HiaHER LAW. 43 

Lord Brougham says : 

" There is a law above all human enactments, written by the 
finger of God on the heart of man." 

From Montesquieu — Spirit of Laws : 

" Before laws were made, there were relations of possible 
justice. To say that there is nothing just or unjust but what is 
commanded or forbidden by positive laws, is the same as saying 
that before the describing of a circle, all the radii are not equal. 

" We must therefore acknowledge relations of justice ante- 
cedent to the positive law by which they are established. 

"Antecedent to all political and civil laws, are the laws of 
nature." 

Says Lord Bacon: 

"As the common law is more worthy than the statute law, 
so the law of nature is more worthy than them both." 

Burke, in his Speech on the Trial of Warren Hastings^ uses 
the following language : 

" We are all born in subjection, all born equally, high and 
low, governors and governed, in subjection to one great, immu- 
table, pre-existent laAV, — prior to all our devices, and prior to all 
our contrivances, — paramount to all our ideas, and all our sen- 
sations, — antecedent to our very existence, by which we are knit 
and coimected in the eternal frame of the universe, out df which 
we cannot stir. 

" This great law does not arise from our conventions and com- 
pacts ; on the contrary, it gives to our conventions and compacts 
all the force and sanction they can have ; it does not arise from 
our vain institutions." 

Says Sir James Mackintosh : ^ 

" The law of nature is a supreme, inviolable, and uncontrolla- 
ble rule of conduct to all men. It is discoverable by natural 
reason ; its fitness and wisdom are founded on the general na- 
ture of human beings, and not on any one of those temporary 
and accidental situations in which they may be placed." 



44 THE HIGHER LAW. 

So also Cicero ; — we translate from the Be Repuhlica : 
" For, indeed, the true law is right reason, agreeing with na- 
ture, extending over all things, constant, everlasting, — calling 
us to duty by its commands, deterring us from crime by its pro- 
hibitions. To this law neither can anything be added, nor is it 
lawful to take anything away. Nor can it be totally abolished. 
Neither by the Senate or the people can we be absolved from 
this law ; nor can it be one law at Athens, another -at Eome, but 
it will govern all nations through all time, as an eternal and un- 
changeable law ; of which law, God being the author, the man 
who will not obey it, flees from himself, and renounces the nature 
of a man, — and by that very act suffers the highest penalties." 

Lord Coke laid it down as a principle, that — 
" The common law doth control acts of Parliament, and ad- 
judge them void, when against common right and reason." 

In the case of Day vs. Savage^ Lord Chief Justice Hobart 
decided that — 

"An act of Parliament, made against natural equity, is void 
in itself, ^ox jura naturoe sunt immutabiliay 

From Libber's Political Ethics^ (a work recommended by 
Chancellor Kent, in his Commentaries on American Law, as 
" excellent in its doctrines, and exhibiting with great force, the 
reason and necessity of the application of the principles of ethics 
to the science of politics,") — we make the following extracts; 

" Though some ancient and modern writers have maintained 
that no right exists antecedent to the magistracy, it is neverthe- 
less true that the reality and truth of natural law can be scien- 
tifically established with as much certainty as that of other 
sciences." 

"The state does not make right, but is founded upon it; con- 
stitutions do not create liberty." 

" Not that I am guilty of the egregious folly of believing that 
everything in the state is good ; that the authorities established 



THE HIGHER LAW. 45 

by the state may not sanction unwise, bad or wicked things; but 
the state, as the chiefest of human unions, deserves each man's 
faithful devotion, to serve where it is right, to improve where it 
is wrong." 

" All immoral laws are, ipso facto^ invalid, be they customary 
or not. The state, or any authority, cannot require an immoral 
act, or permit a crime." 

Says Blackstone, Commentaries on Law : 

" Nay, if any human law should allow or enjoin us to commit 
murder, we are bound to transgress that human law, or else we 
must offend both the natural and the Divine." . • 

From Cicero, De Legibus : 

" It is a most foolish [stultissiina) notion to suppose that every- 
thing established in the institutions or laws of a people is just." 

" We ought not to separate the science of public law from 
that of ethics, nor encourage the dangerous suggestion that gov- 
ernments are not so strictly bound by the obligations of truth, 
justice and humanity in relation to other powers, as they are in 
their own local concerns." — Chancellor Kent, Commentaries on 
American Laiu. 

Says Mr. Justice Coleridge : 

" The practical conclusion is, that disobedience is always pre- 
sumptively wrong in morals, — though it may be justifiable in 
the case supposed, — of a contradiction between Divine and hu- 
man laws." 

" That we are bound to disobey every human law which al- 
lows or enjoins us to commit a breach of the law of nature, will 
appear indisputable if we reflect that such a law will promote 
the misery of man so long as he retains the nature with which 
he is at present endowed. 

" It would be too absurd for the most strenuous advocate of 
passive obedience and non-resistance to contend, that any rule 



46 THE HIGHER LAW. 

prescribed by the supreme power in a state, having these char- 
acteristics, ought to be obeyed by any rational or responsible 
being." — Wendell, in Notes to Blackstone. 

Says Wayland, in his " Moral Science ;" 

" Passive obedience, in many cases, would be manifestly 
wrong. We have no right to obey an unjust law, since we must 
obey God at all hazards. — It is manifest that passive obedience 
cannot be the rule of our conduct." 

" Those Eights therefore, which God and Nature have 
established, and are therefore called natural rights, such 
as are life and liberty, need not the aid of human law to 
be more effectually invested in men than they are ; neither 
do they receive any additional strength when declared by 

THE MUNICIPAL LAWS TO BE INVIOLABLE. . . . On THE CONTRARY, 
NO HUMAN LEGISLATURE HAS POWER TO ABRIDGE OR DESTROY THEM, 
UNLESS THE MAN SHALL HIMSELF COMMIT SOME ACT THAT AMOUNTS 

TO A FORFEITURE." — Blackstone, Commentaries, 

Finally, we quote the words of Thomas Jefferson, in the 
Virginia Resolutions of 1798, much talked of, but little read, 
and less regarded, — before whose lofty spirit and comprehensive 
principles, the debilitated democracy of our day should hide its 
diminished head. 

" Besolved, That this Commonwealth is determined to submit 
to undelegated and consequently unlimited powers in no n:an or 
body of men on earth ; that these, and successive acts of the 
same character,* unless arrested on the threshold, may tend to 
drive these states into anarchy and blood, and will furnish new 
pretexts for those who wish it to be believed that man cannot 
be governed but by a rod of iron. That it would be a danger- 

=* Referring to the " Alien and Sedition Laws," which afforded almost a 
perfect parallel, in their inhumanity and rigor toward the friendless, their 
provisions for summary process, and their denial of the ordinary forms of 
justice, to the late Fugitive Slave Law 5 — and v^hich, like that, were hurried 
through Congress by a bare majority, unquestionably against the sober con- 
victions of the people. 



THE HIGHER LAW. 47 

ous delusion were a confidence in the men of our choice to silence 
our fears for the safety of our rights ; that confidence is every- 
where the parent of despotism ; and this Commonwealth doubts 
not that their co-states will agree with them in the opinion that 
the men of our choice have more respected the bare suspicions 
of the President, than the solid rights of innocence, the sacred 
force of truth, and the forms and substance of law and justice ; 
and that their co-states, recurring to their natural rights^ will 
concur in declaring these laws void and of no force ; and will 
unite in requesting their repeal at the next session of Congress." 

It still remains to notice, in few words, tlie 
Scriptural argument, wliicli may properly be re- 
garded as a brancli of tlie authoritative. What- 
ever theory of the obligation of obedience to law 
may be drawn from isolated texts of Scripture, it 
cannot be concealed that the whole weight of 
practical examples is on the side we advocate. 

The first instance we cite is the law of Pharaoh, 
King of Egypt, commanding all the Hebrew male- 
children to be slain : — " And Pharaoh charged all 
his people, saying. Every son that is born ye shall 
cast into the river, and every daughter ye shall 
save alive." This was the " supreme law of the 
land ;" and it was the duty of " all good citizens " 
to obey it. But we read that, " The Hebrew mid- 
wives feared the Lord, and did not as the king 
of Egypt commanded them, but saved the men 
children alive. Therefore God dealt well with the 
midwives." Here were some, at least, it seems, 
who recognized a Higher Law, and for obedience 
to it, they had their reward. 

Again, when Nebuchadnezzar set up his golden 



48 THE HIGHEE LAW. 

image in tlie province of Babylon, and ordained 
that wliosoever fell not down to worsMp it, slionld 
tlie same lionr be cast into a burning fiery furnace — • 
we find tlie three Hebrew youths telling the king 
to his face, " O Nebuchadnezzar, we are not careful 
to answer thee in this matter. Be it known unto 
thee, O King, that we will not serve thy gods, nor 
worship the golden image which thou hast set 
up." We all know the result. — ^Though the king 
was " full of fury," he was not able to intimidate 
Shadrach, Meshach and Abednego, nor make them 
obey the " lower law." 

So also, when king Darius had made an unal- 
terable law, that every man who should ask a 
petition of any God or man within thirty days, 
save of the king, — should be cast into the den of 
lions, we find heroic Daniel, " when he knew that 
the writing was signed," goes to his house and 
prays three times a day with his window up, " as 
he did aforetime," — ^not fearing the power of the 
law, nor yet the den of lions. 

Christ made no scruple of disregarding the rigor 
of the Jewish laws^ — telling the high priests to 
their face that it was lawful to do well on the 
Sabbath-days — and rebuking the Pharisees for 
making the commandment of God of none effect 
by their tradition. 

When Peter and John were diligently spread- 
ing the new gospel at Jerusalem, we read that 
" the priests, and the captain of the temple and 
the Sadducees came upon them, and laid hands 



THE HIGHER LAW. 49 

on them and pnt tliem in prison." And on the 
morrow, the authorities being assembled in coun- 
cil, " the rulers and elders, and scribes, and Annas 
the high priest, and Caiaphas, and John and Alex- 
ander, and as many as were of the kindred of the 
high priest" — examined these " agitators " and 
" fanatics," who were endangering the " peace " 
and " harmon}' " of the nation. And when the 
'' Union and Safety Committee," — composed of the 
Pharisees of the Church, and the '^ Old Hunkers " 
of the State, had taken counsel together, and de- 
cided that the " agitation " should be stopped, they 
" called Peter and John, and commanded them not 
to speak at all nor teach in the name of Jesus." 
What said the apostles to that ^ " Whether it be 
right in the sight of God, to heai'ken unto you 
more than unto God, judge ye." And again, when 
they were arrested a second time for breaking the 
law, they replied, fearlessly, " We ought to obey 
God rather than men." 

But we have a case still more in point. When 
Ahab was king over Israel, there was a decree 
against all the prophets of the Lord, that they 
should be slain. And "all good citizens" were 
commanded to ferret them out and help the 
^^ posse comitatus^'' of the realm to execute the 
law. And it was death to " harbor or conceal a 
fugitive " prophet, " knowing him to be such," — 
and every man was forbidden to "aid or abet" 
his escape. But one Obadiah, a man who " feared 
the Lord greatly," and believed in the Higher 
4 



50 ™e highek law. 

Law, '^ took a hundred prophets and Md them by 
fifties in a cave, and fed them with bread and 
water." — He thought it was best to resist the 
" Fugitive Law " — and harbored and concealed as 
many fugitives as he could find, — ^not fearing the 
wrath of Jezebel, nor the power of the king. 

Nor, if we come down to modern times, do we 
find the strictest servants of the Scriptures more 
ready to obey unjust laws than the early saints. 
The text, '' Eender unto Caesar the things that are 
Caesar's," did not prevent the English Presby- 
terians from resisting the laws of Charles the 
First — nor the Dissenters from exercising their 
liberty of speech, nor the bishops from protesting 
against the tyranny of James. The words of Paul — ■ 
" Let every soul be subject unto the higher pow- 
ers ; for whoso resisteth the power, resisteth the 
ordinance of God" — did not hinder our Puritan 
ancestors from acting upon the principle that 
^' Resistance to tyrants is obedience to God." 

If men would but remember, that these texts 
from Paul's Epistle have been quoted to sanction 
every monstrous stretch of arbitrary power, every 
act of oppression, cruelty and outrage which 
darkens the annals of the world, they would be 
somewhat slow to bring them in as a cloak for 
American sin and injustice in the shape of law. 
It is strange that any ministers of Christianity 
should lend themselves to the work of advocating 
the lower law at the expense of the Higher. — One 
blushes to hear from the pulpit, deprecations of 



THE HIGHER LAW. 51 

disobedience, and doubts as to tlie " expediency " 
of obeying conscience. If our Christianity is only 
good to make time-servers and moral poltroons, 
we liad better go to Socrates and Cicero for our 
religion, who at least bade men be conscientious, 
let what might follow. — Shall it be said that 
that grand old saying, '''' Fiat jicstitia^ mat coelum^ 
Let the right be done thoug'h the skies come 
down," although the utterance of a heathen Ro- 
man, is a mark above the morality of the church ? 
To what avail then its '' noble army of martyrs," 
its fearless prophets and brave apostles ? YV'hat 
boots it that Saint Peter obeyed God rather than 
men, if his successors teach us to obey men rather 
than God ? Is the church then sunk so low as to 
pander for crime in the name of law, and preach 
down conscience in the name of God ? Better 
give us heathenism with conscience, than Chris- 
tianity without it. Better leave men to the law of 
nature than teach them in the name of Christ to 
do to others what they would not for the world 
that others should do to them. If this is all that 
Christianity can come to, then surely Christ is 
dead in vain, and he, who, for obedience to the 
Higher Law, was put to death by the lower, has 
shed his sacred blood for naught. But no ! 'twere 
blasphemy to think so meanly of God's goodness as 
to believe that he will suiter his truth to perish. 
Let there be a few wolves among the flock ; there 
are yet enough free lips, and Christian, human 
souls, to keep alive the Christianity of Christ, that, 



52 THE HIGHEK LAW. 

beautiful and sacred brotlierliood whose limits 
are mankind ! 

Finally, it can hardly be expected of our peo- 
ple, — at least of any general portion of them, — ^to 
surrender the rights of conscience, the best es- 
tablished principles of former times,- and the 
strong instincts of human nature, in obedience to 
such laws as that lately hurried through the forms 
of legislation. The law which is built on justice, 
requires but little aid of men to make it binding ; 
but to such laws as these, justice is a sworn and 
eternal foe. The law of conscience cannot be set 
aside by courts, the eternal instincts of humanity 
cannot be legislated out of men. 

The Law of Nature still reigns supreme, whe- 
ther men set up their puny laws, or pull them 
down. 'Not king, nor Congress, nor legislature can 
nullify that ; not all the votes of all the parties 
can bear down justice at the last. Sooner or later, 
the right will have its way. If justice be not 
done by your laws, 'twill be done in spite of them, 
for it must and will be done. An unjust law is 
sure to be set at naught, for conscience cannot be 
cheated of her rights forever. Talk not to us of 
Treason. Injustice is the only treason; no law 
can legalize it, no constitution can sanction it ; it is 
null by the older Constitution of Nature, void by 
the Higher Law of God ! 

'Tis strange that so plain a truth should need 
be told ; strange that Justice should need the help 



■^^^^^ 



THE HIGHER LAW. 53 



of History, and call on logic for its defence. But 
so it is, tliat in tlie minds of men, reason is de- 
throned by prejudice, and interest will blind tlieir 
eyes to justice. To liear tbe daily talk of men,, 
one would think that no law was ever disobeyed 
till now ; no act of legislation ever so mucli as ques- 
tioned before. Politicians gravely tell us tliat the 
Higlier Law is treason, — and Divines preach sol- 
emn sermons to prove the Statute Book infallibly 
inspired ! Yet, every day witnesses the breach of 
laws far more reasonable, and a hundred times as 
righteous. Men can swear unlawful invoices at 
the Custom-House, — take unlawful interest, — drive 
trades unlawfully on Sunday, — make unlawful 
bets, — rent unlawfid brothels, — sell unlawful li- 
quors without license, — yes, vent unlawful oaths 
against the '' Higher Law," and who is there that 
cares a pin ? Men may break all these laws, and 
more, for the sake of interest, and there is not a dog; 
to wag his tongue ; but let a man disobey an un- 
just law, for the sake of principle, and the whole 
land rings with the cry of treason ! The very man 
who will break every law, human or divine, for the 
Almighty Dollar, sneers at the "fanaticism" of 
him who keeps the law of Almighty God ! In the 
hands of a subtle lawyer, working for a fee, the 
Constitution and the laws are as elastic as India- 
rubber ; but when the voice of humanity cries out 
for justice, suddenly they are found to be stereo- 
typed in steel ! 

But let no man despair. Justice asks no aid of 



:^ 



THE HIGHEE LAW. 



mortal men, and God's laws will one day or other 
execute themselves. The Higher Law is in no 
danger of being permanently disregarded, nor are 
its subjects to be frightened from their allegiance 
by being called bad names. The law which came 
not from men, depends not on them for its sanc- 
tion, — it reaches down its feet to the foundations of 
the universe, and its hand takes hold on the throne 
of God. 

" In the open Book of Nature, Heaven above and Earth below, 

We have learned a Higher Statute than the babbling schoolmen know. 

God's voice in conscience taught us, as his angels only can, 

That the one sole sacred thing beneath the cope of Heaven is Man. 

" That he who treads profanely on the scrolls of law and creed, 
In the depths of God's great goodness may find mercy in his need ; 
But wo 3 to him who crushes the Soul with chain and rod, 
And herds with lower natures, the awful form of God !" 



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